*1 WILSON, appearing in Wilson W. capacity the curator of the
his
interdict, Plaintiff-Appellee, FARM FIRE AND CASUALTY
STATE CO., Defendant-
INSURANCE
Appellant.
No. 04-31167. Appeals,
United States Court
Fifth Circuit. 5,May
Decided Sr., Jones, Jones &
Johnnie Anderson LA, Jones, Rouge, Plaintiff-Ap- Baton pellee. Forrester, Forrester, &
David C. Jordan LA, Dick, Baton for Defendant- Appellant. GARWOOD,PRADO, and
OWEN, Judges. Circuit * PER CURIAM: I. BACKGROUND involves This case Defendant-Appel- allegation Wilson’s * 47.5, Cir. has the limited circumstances set forth in 5th Pursuant to 5th Cir. R. the court opinion should not be determined R. 47.5.4. precedent except published and is not under *2 fire, Fon- Casualty day Farm Fire and Com- On the before the
lant State (“State Farm”) trip an took three of his sons on a to pany pay failed to insur- tenot homeowner, Houston, Texas, leaving to an Christel Fontenot ance claim owed insured Fontenot, house in the house. After the children Christel when her was alone father, July their Fonte- destroyed Monday, departed in a fire. On with Christel in damage began ripping carpet a to not out the the fire substantial dwelling community by owned in master bedroom of the house. On Mon- the fire, day, day the of the she continued to Christel Fontenot and her husband Martin house, strips carpet Fontenot. The located in Baton remove from the home. Additionally, spread by was insured State Farm. At the Christel Fontenot house, fire, newspaper throughout taping of the Martin and Christel Fon- the time approximately stuffing had married for to the walls and it under doors in tenot been twenty-nine years Although had some instances. Christel Fonte- and owned spread newspaper not claims that she years. house for seventeen in spread order to inhibit the of dust fol- fire, years About ten beforе the doctors in lowing carpet the removal of the diagnosed bipolar Christel Fontenot with a bedroom, spread newspaper master *was disorder, alternating peri- which involves vicinity. beyond the bedroom’s manic depression ods and behavior. on alleges departing State Farm that Christеl Fonte- the residence fire, interrupted evening not’s mental illness her work Christel Fontenot re- Moreover, years. photographs framed and loose from as teacher for two the moved home, malady neglect packed to two of her allegedly induced her walls boxes, engage jewelry packed in a and a box with pattern her children and to three family, and spending personal, excessive which she could not numerous work-relat- Fontenot afford. Martin Fontenot claims be- ed documents. locked house departed a few minutes before the persuade cause he could not his wife reported Rouge that was to 911. The Baton comply drug therapy regimen with a health, report received the Department would stabilize her mental he made Fire marriage. p.m. Although alleges the fire at 6:36 the decision end his Conse- home, that when she left her she was quently, July days on ten before fire, Destrehan, going to visit Louisi- packed belongings, he his moved friends home, ana, reached out of the and stated that he would Christel Fontenot never Des- Instead, trehan. she checked into a Baton filing be for divorce. Rouge motel. Although undisputed it is that Christel Initially, under sworn Fonte- proрerly Fontenot was not served with around trial that she left her home papers divorce until after the stated However, recanted. Fon- noon. she later testimony suggests that after Martin separate indi- home Fon- There is from two tenot moved out of the had conversations with her burning in the back viduals who began paper tenot actually left the only minutes before she yard, activity engaged that she had not individ- p.m. house after 6:00 One those previously. Additionally, Christel Fon- Fabre, uals, neighbor of the Fon- driveway or on Arthur began parking tenot person the last opposed family house tenot was the street front of the asked family’s property. He had been garage, purport- in the place to her normal the horses on the gasoline Martin Fontenot feed edly there was too much noticed that Christel Fonte- property, and garage. in the rec- entire parties stipulating his car he finishеd gone not’s when carry trial would over. from of the first departing A minutes after ord task. few land, added to the standing while The additional evidence family the Fontenot friend, testimony of Christel Fabre noticed that was the trial outside with a record *3 family’s on fire Following the Fontenot residence was Fontenot. judgmеnt in attempted court,
and called 911. He also to ex- rendered again, district garden with a hose. tinguish the flames and against favor of court, time, Farm. The district State Upon arriving at the scene of the judgment. for its On gave oral reasons home firefighters found that the had been 4, 2004, timely Farm filed November Statе signs locked and There were no secured. Appeal. a Notice of Fontenot, forced entry. of Fontenot, and their kids were the II. REVIEW STANDARD OF keys individuals to the Fire- with house.
fighters that the fire also noticed started a district court’s con This reviews in the master closet. bedroom findings of and its of clusions law de nоvo Ltd. v. fact for clear error. Rimade Hub
At the of conclusion State Farm’s inves- Enter., 138, Inc., bard 388 F.3d 142-43 tigation, deny it decided to Fontenot (5th Cir.2004) Joslyn Mfg. (citing Co. v. family’s policy. claim under their insurance (5th Co., However, Koppers 40 F.3d 753 Cir. separately State Farm settled 1994)). a finding We will reverse with Martin Fontenot after the claim was if, denied, notwithstanding sup fact evidence to him full paid and amount for it, we and port are left with “definite destroyed property his interest in the and firm mistake has conviction” that a been for that of his children. State Farm’s Co., made. Justiss Oil Inc. Kerr- management decided to settle with Martin (5th 1057, 1062 Corp., McGee 75 F.3d Fоntenot there was evidence Ref. Cir.1996). However, finding that Martin when Fontenot was involved in caus- Fontenot, premised improper legal fact is on an ing the stan loss. Christel dard, hand, clearly insulation of the any loses the paid was not her claim Maritrend, erroneous Inc. v. against rule. Serac State Farm her Ltd., claim that & Co. 348 F.3d (Shipping) she did not start the fire. (5th Cir.2003). May 23, 1998,
On the district court con- a non-jury ducted trial. On March III. DISCUSSION 2003, the district court judgment entered in favor of Plaintiff-Appellee, and main against State Farm makes three claims: (1) timely State Farm. State Farm the finding Plaintiff-Appellee filed notice of appeаl. appeal, clearly On Defendant-Ap- this Court erroneous because (1) determined that pellant district court failed sufficient submitted evidence to (2) assign any defense; to ruling written reasons for its succeed on its arson after in violation of Federal Rule Civil Proce- Farm State met its initial burden with (2) 52(a); defense, dure regard the district court commit- its arson district it, ted reversible error sua sponte, when court should have switched the burden excluded the of Christel proof Fonte- to offer reason- by (3) incompetent herself; her to proof be to able and at exonerate (3) testify; trial, Defendant-Aрpellant proved evidence the record not support judgment. the court’s knowing On Fontenot material misrep- made 13, 2004, actions, concerning October the trial resumed with resentations of fact her Id.; Co., voiding policy. thus the insurance Be- Rist v. Commercial Ins. Union (La.1979). Hence, cause we detеrmine that the trial So.2d 113-14 evidence preponderance under presented preponderates State Farm appropriate evidence standard is the stan- favor of Farm in a convincing State such considering dard for whether or not a de- Plaintiff-Appel- manner that a proving fеndant has met its burden of erroneous, lee would be we reverse matter, evidentiary arson defense. As an judgement, the district court’s and render “[mjotive plus incendiary origin judgment for State Farm. [will], in the absence of believable First, State claims that the evidence, rebuttal be sufficient to sustain district court in finding еrred that it failed pleaded by in- affirmative defense *4 carry its proof burden of to succeed on (citations surer.” 60 at 70 So.2d its arson policy coverage. defense to Un omitted). law,1 der Louisiana to sustain the defense have, appellate Some Louisiana courts incendiarism, insurers bеar the burden however, that, Sumrall to mean construed of proving by preponderance the defense in depending solely cases on circumstantial in evidence—unlike criminal cases proof, the evidence must be convincing so prove guilt
where the State must of an that it will sustain no other reasonable beyond arsonist a reasonable doubt. Sum- hypothesis plaintiff but that was re- Co., Washington rall v. Providence Ins. sponsible for the fire. Christensen v. (1952). 633, 68, 221 La. 60 So.2d 69 Co., State Farm Mut. Auto. Ins. 552 So.2d Recognizing only that in most cases the Cir.1989) (La.Ct.App. 1378-79 5th evidence of arson is circumstantial due to (citation omitted) (“Where circumstantial perpetrators the fact that of incendiarism facts,” upon, evidence is relied “[t]aken engage activity do not in notoriously, such as a ... whole must exclude other reason- Supreme the Louisiana Court has re hypotheses able with a fair amount of cer- peаtedly that: stated tainty.”); Wallace v. State Farm Fire & Co., Cas. Ins. 345 So.2d 1006-07 arson, Inasmuch as the defense is Cir.1977) (“When (La.Ct.App.3d proof is upon
burden rested insurer to estab- circumstantial, the evidence must be so lish, by convincing proof, that the fire convincing that it will sustain no other incendiary origin was of and that plain- hyрothesis plaintiff reasonable but that responsible tiff was for it. It is well fire.”); responsible for the see also settled that not prove the insurer need Co., Baghramain v. MFA Mut. Ins. 315 against plaintiff beyond its case a rea- Cir.1975). (La.Ct.App.3d So.2d 851 doubt; that sonable it suffices the evi- preponderates in rigorous dence favor of the de- It is this more standard that Proof, course, may apply fense. be and the district court seemed to invariably entirely at that Farm is circumstantial. case hand. State burden, And, instances, did not meet its the court wrote: in these is where defendant warranted the evi- I that say threw out Fabre not to he that, import say dence is of such that it will sus- that anything it or like but to hypothesis explanations tain no other reasonable but there are reasonable is for the other than that Mrs. responsible happened that the claimant what another fire. Christel Fontenot did it. And Tompkins, 1. federal diver- law. Seе Erie R.R. Co. v. 304 U.S. Because this case falls within 64, 79-80, (1938). sity apply 1188 jurisdiction, we Louisiana 58 S.Ct. 82 L.Ed. must
441 strong is that will sustain dence so possible explanation that the can- that hypothesis but is the that Martin Fonte- reasonable ignore not fact Sumrall, the fire. claimant away four from Ba- started not was hours Viviano, F.Supp. see also 69; at Again, that’s So.2d Rouge ton Houston.... Viviano, Hence, the court held at 7. say Fontenot started the not to re proof the burden of in order to meet say that is to that the evidence but defense, the evidence garding an arson the cause of that Christel Fontenot was in favor of the only preponderate need the fire does not—the evidence Viviano, at F.Supp. defense. it does not exclude—the circum- caused evidence that she stantial Viviano court’s approve We possibil- not exclude does the reasonable apply of Louisiana law and interрretation that it was started someone else. ity require preponderance of the evidence being just and Martin Fontenot Fabre proof an proper ment as standard of possibilities. two reasonable meet to sustain insurer must order Hence, the district court subscribed to the met arsоn State defense. that in order on its arson prevail notion de to sustain its arson this initial burden defense, State Farm had to exclude all fense; evi but the circumstantial *5 fire. reasonable causes of the other strong, dence is we find that State so is an between the There obvious tension that convinсingly proven also has of of proof two articulations the standard explanations there are other reasonable no asserting insurers the defense arson Fon for Christel Viviano v. Travelers In- In must meet. that she start the tenot’s did not (E.D.La. Company, surance F.Supp. It that was of undisputed fire. the fire is 1981), thе district court addressed this incendiary origin. Additionally, Christel There, chose very issue. the court to ad- Fontenot, key a individual with preponderance of here to the evidence house the house in Baton left the standard alone. Id. at 7. First, the court discover minutes before fire was that “the preponderance reasoned of the pres ed. Fontenot’s financial requirement imprima- evidence bears impending sures and the divorce serve tur of the ultimate construer Louisiana Moreover, evidence of motive. Fontenot’s Id. law,” the Louisiana Court. Supreme jewelry, family photographs, removal of Next, explained important just the court that “no and documents before probative other reasonable fire are the fact that hypothesis standard” also circum grown Together, to have of a loss. seems out misunder- of Sumrall. Id. standing holding preponderates of thе stantial favor evidence Sumrall, particular way the facts case such a defendant irrespective that the would were such evidence sustain used, no than that standard would be erroneous. hypothesis other reasonable Id. hypothetical The alternatives the claimant started thе fire. Howev- reasonable er, evi holding proffered by was no that the the district court find no there defen- dant must exclude other reasonable dentiary Further possi- support the record. more, suggest its prevail bilities order on arson review record Rather, the Sumrall court em- other reasоnable alternatives in addition to defense. that, in phasized relying primarily ones district court. proposed cases evidence, Consequently, we the district circumstantial for the reverse judgment warranted where the evi- is court’s and render judgement, defendant for State Farm. See 60 So.2d at
71.2 Because we reverse the district
court’s judgment based on the arson de
fense, we do not reach State Farm’s other
arguments.
REVERSED and RENDERED.
GARWOOD, Circuit Judge, dissenting in
part: judgment
The trial сourt’s is based on legally premise erroneous that State
Farm’s defense of required arson it possibilities
eliminate all reasonable
than the plaintiffs arson. I would accord-
ingly plaintiffs reverse. Given
implausible is, though it the trial —which may may or not have credited —I
would not now render. Jr.,
Joseph Gay, H. Assistant At- U.S. torney, Attorney’s U.S. Office Western Texas, Antonio, TX, District of San Plaintiff-Appellee. *6 Frost, Wayne Midland, TX, for Defen- America,
UNITED STATES of dant-Appellant. ESCARCEGA-MEDINA, Antonio
Defendant-Appellant. JONES, Judge, Chief
No. 04-51237. BENAVIDES, BARKSDALE and Circuit Appeals, United States Court of Judges. Fifth Cirсuit. * PER CURIAM: 9,May Decided trial, Following a bench Antonio Es- carcega-Medina illegal was convicted of reentry deportation, after in violation of 8 1326(a) (2000). § appeal, U.S.C. On Es- carcega challenges his conviction on the ground that he is a citizen of the United pursuant § States to 8 U.S.C. 1401. After court, light 2 . sending of the fact that this is our second this case back to the district Plaintiff-Appellee’s occasion to correct the district claim court's errors any finding not start the fire. and because * erroneous, 47.5, would be the interests of Pursuant to 5th Cir. R. this Court has judicial economy opinion would best be served determined that should not be